IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.REF.No. 1 of 2009() 1. SUO MOTU ... Petitioner Vs 1. STATE OF KERALA ... Respondent For Petitioner :SUO MOTU For Respondent :SRI.BABU S. NAIR The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :05/06/2009 O R D E R M.SASIDHARAN NAMBIAR, J. ================== Cr.Reference No. 1 of 2009 ================== Dated this the 5th day of June, 2009. O R D E R
The Criminal Reference was suomoto registered on the
report submitted by Chief Judicial Magistrate, Manjeri.
Chief Judicial Magistrate reported that C.C.No.130/1991
was taken cognizance against four accused and during trial,
first accused absconded and the case as against him was
split up and refiled as C.C.No.73/1995. Subsequently it was
transferred to L.P. Register. When he surrendered, the
case was taken on file as C.C.No.154/2006. It is pending
before the Magistrate. Respondent is the said accused.
Chief Judicial Magistrate reported that petitioner had
absconded after recording of the prosecution evidence and
the case was posted for questioning under Section 313 of
Code of Criminal Procedure. The questions to be put to the
petitioner was prepared and available in the case records.
When presence of petitioner was procured he was
questioned under Section 313 of Code of Criminal
Procedure with the questions prepared earlier. It was
pointed out that subsequently it was found out that after
disposal of the case as against the other accused, the
depositions were destroyed. When the accused absconded
after closing the prosecution evidence, the depositions
should not have been destroyed. Unfortunately, the
accused was questioned and only later it was found out that
the records are not available. It is submitted that the only
course open is a denovo trial.
2. Learned Counsel appearing for the respondent/
accused and learned Public Prosecutor were heard.
3. Even though the evidence was recorded earlier
when petitioner was appearing in C.C.No.130/1991, the
other accused were questioned under Section 313 of Code
of Criminal Procedure, and after hearing the prosecution on
the defence, the other accused were acquitted. After the
presence of the petitioner was procured in the split up case,
finding that the questions to be put to the petitioner are
available in the case records and as petitioner absconded
only at that stage, Magistrate questioned the petitioner
under Section 313 of Code of Criminal Procedure without
the knowledge that the original depositions are not
available as they were destroyed. Inspite of the steps taken
to get certified copies of the depositions to reconstruct
them, they are not available.
4. The question is what is the procedure to be
adopted. The fact that the other accused were acquitted is
not a ground to drop the proceedings at this stage for non-
availability of records. As the Magistrate reported that
copies of the statements of the prosecution witnesses,
recorded by the investigating officer and the exhibits
marked in the case are available, the only course open now
is to direct a denovo trial.
5. Chief Judicial Magistrate is directed to conduct a
denovo trial of the accused in C.C.No.154/2006.